Federalism and Decentralization

Constitutional Problems of Territorial Decentralization in Federal and Centralized States

Thomas Fleiner-Gerster

• Publisher: Taylor & Francis
• Year: 2019
• Print ISBN: 9780367007058
• eBook ISBN: 9780429709999
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Public Law
• Index: Politics & International Relations

This book is an outcome of the round table conference held in 1984 in Switzerland. It deals with decision of decentralization, structure of decentralized units, external power of decentralized unit, financial autonomy and decentralization and the protection of the basic rights.

Section VI
Decentralization and the Protection of Basic Rights
Décentralisation Et La Protection Des Droits Fondamentaux

General Report / Rapport Général

Federalism, Decentralization and Human Rights

Louis HENKIN

There is no necessary correlation between federalism or other forms of decentralization and a state’s respect for human rights. A state’s constitutional dispositions or its international obligations in respect of human rights, and its capacity and willingness to respect them, do not ordinarily depend on whether it is a unitary or a federal state or on the degree of centralization of its political institutions.

Nevertheless, whether a state is unitary or federal, centralized or decentralized, is not irrelevant to its human rights system and condition. A centralized government can effectively establish human rights standards applicable throughout the state and see to their enforcement. In the United Kingdom, for example, without a written constitution and with parliament supreme, respect for the rights of individuals is the responsibility of the central government. The doctrine of ultra vires can be invoked to ensure that local authorities do not violate basic rights protected by national law. Complaints against local authorities may be brought to the appropriate minister in the national government. Citizens may bring grievances for violation of human rights before national ombudsmen, which may investigate and publicize violations. Local officials may also be held personally liable for illegalities. The United Kingdom is party to the European Convention on Human Rights as well as to the International Human Rights Covenants, and the Government is responsible for violations of those agreements by local as well as national officials. (In one case, the United Kingdom was held to be in violation of the European Convention because birching was practiced as punishment on the Isle of Man; but the special constitutional relationship of the Isle of Man to the United Kingdom is such that the central government could not repeal the offending local regulations but had to depend on persuasion and voluntary compliance.)

Of course, federalism and other forms of decentralization respond to political and societal concerns that implicate human rights. Especially when federalism results in small political units with substantial autonomy, as in Switzerland, it builds a sense of community and permits more meaningful individual participation in self-government. In many countries, the autonomy granted to local units is designed to assure self-determination and the rights of minorities and their members against abuse by national majorities. Moreover, in some federal or otherwise decentralized states, constituent units have sometimes been able to take the lead to advance human rights beyond the national level and raise human rights standards, which other political units would follow and which might become the national standard. In particular instances, however, a state’s federal character and its historic development may explain constitutional and institutional anomalies where human rights are concerned. In some localities, moreover, as a result of federalism or other decentralization, the national constitutional mandate as to individual rights is not effectively enforced. Federalism has also been a consideration in a governmental decision to refuse or to limit adherence to international human rights agreements, and has sometimes frustrated the effective implementation of such agreements

Implications for human rights will differ, of course, with the form and degree of federalism or decentralization. They may depend, too, on the particular history of constitutional and institutional development. The experience of the United States, which has a long history both as a federal state and as a state constitutionally committed to human rights, may offer some guidance both as to paths others might follow and pitfalls they might avoid

The development of U.S. federalism and human rights

In the history of the United States, the constituent states antedated the Union. For domestic purposes, there were thirteen independent states on the North American continent between 1776, when independence from Great Britain was declared, and 1789 when the U.S. Constitution came into effect establishing a federal state. Each of the thirteen states had its own constitution; each had its own government

The constitutions of the thirteen states were not dissimilar. In somewhat different formulations, all reflected the theory of government described in the Declaration of Independence of 1776, including a view of the individual as having autonomy and freedom – rights to life, liberty, property and ”the pursuit of happiness“ – before entering society, and a view of society as formed by a social contract which established government to secure those rights. Each of the state constitutions had a bill of rights, which included familiar civil and political rights. Each of these bills was implemented by the institutions and laws of the particular state

The United States Constitution was not designed to modify the dependence of individual rights on the constituent states. After the Constitution came into effect the basic relations between individual and government were, as before, those with the State government and controlled by the State Constitution and laws. Even the right to vote for the U.S. House of Representatives was to be governed by State constitutions and laws. The U.S. Constitution was concerned with relations between States and with the need for and the consequences of union. The new central government projected by the Constitution, it was thought, would not impinge on the individual; it was therefore not necessary to include a bill of rights to secure rights against invasion by the U.S. government. Nor was thought given to prescribing in the U.S. Constitution for the rights which the individual has vis-à-vis his/her state, or to give to national institutions authority to scrutinize whether a state was respecting the rights of the individual as set forth in the State Constitution

The references to rights in the original U.S. Constitution therefore were few and distinctly exceptional, having special relation to the limited authority of the federal government. The Constitution established certain safeguards for trials for treason, which was primarily a national rather than a State concern. Invasion or rebellion was also a national concern with which the federal government would have responsibility to deal and it might be impelled to address individual rights in that context; hence, the provision that in such circumstances the privilege of the writ of habeas corpus could be suspended (by Congress) if the public safety required it. The Constitution addressed the treatment of individuals by the State only if they were citicens of other states. Exceptionally there was also a prohibition on bills of attainder by State (as well as federal) governments, and a prohibition against State impairment of the obligation of contracts, provisions which were apparently considered to be of particular concern to the nation or to other States

In respect of a State’s own citizens and inhabitants, then, the coming of the U.S. Constitution essentially made no difference: rights were between the individual and the State, governed exclusively by State constitution and State law, implemented exclusively by State courts and other institutions. Indeed, the U.S. Constitution expressly confirmed the situation as to rights where the State consitutions left it in one unfortunate respect: the U.S. Congress was forbidden to interfere with the importation of slaves (presumably under its power over foreign commerce) for at least 20 years; and the Governor of a State was required to return any slave fugitive from another State

As is well known, in fulfilment of promises made to allay fears expressed when the U.S. Constitution was being considered for ratification, the Constitution was amended shortly after it came into effect, and the Bill of Rights was added. That Bill of Rights – the first ten amendments to the U.S. Constitution – protects basic civil and political freedoms, the security and privacy of the home, and the integrity and fairness of the criminal process. But the Bill of Rights applied only to the federal government. It required the U.S. Congress, the President, and U.S. courts to respect individual rights. The Bill of Rights did not apply to the States, did not affect the status and rights of the individual vis-à-vis State government and State laws and institutions. Federal courts, including the U.S. Supreme Court, were given no jurisdiction to monitor a State’s compliance with its own constitution, although, in principle, State courts, like federal courts, were available to monitor compliance of the federal government with the federal constitution

That situation obtained in the United States for nearly a hundred years. During that time the federal government passed few laws and took few actions that impinged on individual rights and there was virtually no federal rights jurisprudence. The Supreme Court successfully established the authority of the courts to invalidate actions that were contrary to the Bill of Rights but there were hardly any such cases. Only the provisions forbidding states to impair the obligation of contracts came to court with some frequency, establishing a jurisprudence of protection for rights under contract, but not for ”human rights“

During that time rights were asserted under State constitutions and in State courts. Individual States recognized additional rights, borrowing from each other or from the U.S. Bill of Rights. Some States added a right to public education, setting an example for other States to follow. (Congress began to use its spending power to further education, but it was seen as a public act for the general welfare, not a recognition of an individual right.) State courts interpreted provisions in State constitutions, setting examples for courts in other States interpreting similar provisions. Since the U.S. Bill of Rights had provisions similar to some in State bills of rights, State court interpretations were also available to shape federal rights jurisprudence. For example, the later construction by federal courts that found in the clause requiring ”due process of law“ important substantive limitations on governmental regulation of life, liberty or property, had its roots in State court interpretation of a similar clause in State constitutions

The nationalization of individual rights

After the Civil War (1861–65) the United States Constitution was amended to provide some national protection for individual rights against their violation by the States; in time these amendments effectively nationalized individual rights in the United States

One amendment (Amendment XIII) outlawed slavery throughout the United States, and Congress was given power to enforce that prohibition by appropriate legislation. That amendment has been construed to authorize federal legislation directed also against ”badges of slavery or servitude“, including private discrimination on grounds of race

A more radical change in the character of U.S. federalism was made by the Fourteenth Amendment. It declared all persons born or naturalized in the United States to be citizens of the United States and of the State in which they reside. It provided that no State may ”make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws“. Congress was given power to enforce those provisions by appropriate legislation

The Fourteenth Amendment imposed substantive limitations on the States and on all agencies of State government, on their legislatures, executives and courts. Those limitations are enforced by federal (as well as State) courts, and the United States Supreme Court is the final arbiter as to the meaning, content and scope of the constitutional provision, as to whether the State committed a violation, and as to the remedies available under the Constitution and laws. Even if suits against the State itself might be barred by notions of sovereign immunity, State laws can be declared unconstitutional and state officials enjoined from enforcing them or from committing an unconstitutional act. It is the national Congress which decides what federal laws should be enacted to enforce the provisions of the Amendment, although the U.S. Supreme Court might decide that a particular law was not within the scope of the authority granted to Congress by the Constitution. In fact, Congress has enacted several major civil rights acts providing both criminal penalties and civil remedies against State officials or other persons acting under color of State law who violate individual rights, although certain State officials might enjoy immunity from some proceedings and remedies

Other Constitutional amendments have further federalized individual rights. In particular, a state is forbidden to deny the right to vote on account of race, or gender, or age (for persons over 18), or – in elections for federal officials – for failure to pay a tax. And the general provision forbidding States to deny to any person the equal protection of the laws has been interpreted to require generally-equal representation so that every person would have a roughly equal vote. Congress has passed far-reaching legislation to assure against State denial of the vote on account of race, including rules and procedures that in this respect impinge heavily on the autonomy and sovereignty of the States

Individual rights against the States under the federal constitution, regulated by federal statutes and monitored principally by federal courts, are the principal safeguards for the individual and a large part of U.S. Constitutional jurisprudence. In time, the Court interpreted the Fourteenth Amendment as rendering almost all of the provisions of the Bill of Rights originally applicable only to the Federal Government to be applicable equally to the States. In time, rights have been ”homogenized“ in other respects too, so that in very large measure an individual in the United States enjoys the same rights in relation to the States and to the United States. The very important due process clause which is to be found in both the Bill of Rights applicable to the United States and in the Fourteenth Amendment applicable to the States has been held to provide the same protections, substantive and procedural, against federal and state governments. But the clause has been held to equalize also other protections: the Federal clause has been held to require the United States Government not to deny the equal protection of the laws, or impair the obligation of contracts, requirements that are expressly provided only in regard to the States

Increasingly, then, the Constitutional rights of...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• List of authors / Liste d’auteurs
• Table of Contents – Table des matières
• Preface
• Préface
• SECTION I DECISION OF DECENTRALIZATION LA DÉCISION DE LA DÉCENTRALISATION
• SECTION II STRUCTURE OF DECENTRALIZED UNITS LA STRUCTURE DES UNITÉS DÉCENTRALISÉES
• SECTION III AUTONOMY OF DECENTRALIZED UNITS L’AUTONOMIE DES UNITÉS DÉCENTRALISÉES
• SECTION IV EXTERNAL POWER OF DECENTRALIZED UNITS LE POUVOIR EXTÉRIEUR DES UNITÉS DÉCENTRALISÉES
• SECTION V FINANCIAL AUTONOMY L’AUTONOMIE FINANCIÈRE
• SECTION VI DECENTRALIZATION AND THE PROTECTION OF BASIC RIGHTS DÉCENTRALISATION ET LA PROTECTION DES DROITS FONDAMENTAUX